A A
HCCC 138/2024
[2024] HKCFI 3566
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C COURT OF FIRST INSTANCE C
CRIMINAL CASE NO 138 OF 2024
D D
-----------------
E HKSAR E
v
F F
Kong Wa-kan (江華根)
G G
-----------------
H Before: Hon Anna Lai J H
Date: 2 October 2024 at 9.37 am
Present: Mr Tang Ming-chung Kelvin, SPP of the Department of
I I
Justice, for HKSAR
Ms See Heung-woon Sabrina, instructed by Ernest Tang,
J Solicitors, assigned by DLA, for the accused J
Offence: Rape (強姦)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M M
COURT: The defendant pleaded guilty to one count of rape before
a magistrate on 25 April this year. According to the
N N
particulars of offence, he raped a female, “X”, at his home
in Fu Kwai House in Tai Wo Hau Estate, Kwai Chung, on 3
O November 2022. O
According to the Summary of Facts to which he agreed at the
P time of his plea, at the material time he was 28 years old P
and X was 23 years old. X was suffering from depression
since 2018, and she had to attend follow-up sessions at the
Q Q
Princess Margaret Hospital every three months and to take
regular medication to stabilise her emotions. The defendant
R suffered from schizophrenia since 2012. Also he was R
required to attend follow-up sessions at the Princess
Margaret Hospital. The facts stated that he has received
S disability allowance for over 10 years. S
The two of them came to know each other in year 2020 during
T T
an activity held in the Wellness Centre, which was an
integrated community centre for mental wellness. Since then
U they occasionally met with each other about once or twice U
per week.
CRT18/2.10.2024/AB 1 HCCC 138/2024(1)/Sentence
V V
A A
On 3 November 2022, the defendant asked X to go to his flat
B for a chat and she agreed. At about 7.30 pm on that day, B
they met and the defendant brought her up to his flat.
After chatting for a while in the flat, the defendant
C indicated that he wanted to have sex with X and asked her C
to remove her lower garments. X reluctantly acceded as she
D
was afraid. After having the lower garments of both of them D
removed, X pushed the defendant’s shoulder once to express
her reluctance, but the defendant did not pay heed to her.
E He then asked X to sit on his penis and penetrated into her E
vagina without a condom. At the same time, he also touched
and squeezed the breasts of X.
F F
After a while, he said that he could not ejaculate and he
G had to watch porn video while having sex. Then he took out G
his phone and watched the porn video while he continued the
sexual intercourse. After a while, they changed to another
H posture. At this stage, X pushed the defendant’s upper body H
again to show that she did not want to have sex with him.
But he ignored her and continued to penetrate her vagina
I without a condom. At the same time, he moved his body back I
and forth whilst holding his phone with one hand to watch
J the porn video. It was until X said that she felt tired J
that he stopped. He appeared unhappy and stated that he had
to take medicine. Then both of them left the flat
K eventually. K
According to the CCTV footage of Fu Kwai House, the two of
L L
them entered Fu Kwai House together at about 7.44 pm on 3
November 2022. And they left together at about 8.21 pm on
M the same night. That is about 37 minutes later. M
X only intended to have a chat at his flat and she did not
N want to have sex with him. N
Thereafter, at about 9.00 pm on the same day, X made a
O O
complaint to her boyfriend, Y. Then the next morning, on 4
November, her mother also came to know about the matter.
P Eventually a report was made to the police. P
The defendant was arrested by the police for the offence of
Q rape on 4 November 2022. He stated under caution that, Q
“Sorry, I did rape her, give me a chance.” He also said
that he had sexual intercourse with X at his home. After
R R
the sexual intercourse, he watched porn video with his
iPhone together with her.
S S
In a subsequent video-recorded interview, he said he made
love with X at his home. He was the one who initiated to
T have sex with X because he was addicted in watching porn T
contents. He came to know X at the Centre and they had
U
known each other for about two years. On the evening of 3 U
November 2022, he asked X to go to his home. Upon arrival,
CRT18/2.10.2024/AB 2 HCCC 138/2024(1)/Sentence
V V
A A
he first pulled up the upper garment of X against her wish
to molest and squeeze her breasts. Then he removed her jean
B shorts and underpants and also removed his own lower B
garments before he had sex with X. At the material time, he
said X did struggle and said, “No.” He knew that she was
C not willing to have sexual intercourse with him. But he C
continued in spite of her struggling as he could not
D
control himself. Also, he initiated to change the posture D
because he wanted to have more excitement. He said X helped
him to masturbate on his request. During the sexual
E intercourse, he did not use a condom and also he did not E
ejaculate. The whole sexual intercourse lasted for about 15
to 30 minutes. He knew that X was not willing to have sex
F with him. Also he initiated to watch the porn video during F
the sexual intercourse because he wanted more excitement,
G but X did not show much interest. G
Upon an assessment of the intellectual and adaptive
H functioning of X, it was the opinion of the clinical H
psychologist Ms Lui Fung-yee that the adaptive functioning
ability of X was equivalent to a person of 12 years and two
I months old, which was lower than 99 percent of adults at I
her age. She was considered to have fulfilled the criteria
J of Mild Intellectual Disability. However, she had achieved J
good community adjustment and practical living skills which
required infrequent or no support in her daily life.
K K
By his plea of guilty, the defendant now accepts and admits
that at the material time he raped X at his flat.
L L
Information has put before this court about the assessment
M of the intellectual and adaptive functioning of X. The date M
of assessment was in August 2023. Her intelligence level
was estimated to be equivalent to a person of 12 years and
N two months old. And her assessment indicated significant N
abnormal functioning. She was therefore estimated to be
cognitively impaired. However, she possessed the capability
O O
to live independently. According to the clinical
psychologist, her functioning falls within the definition
P of a mentally incapacitated person under the Mental Health P
Ordinance. As such, her functioning also fits the
definition of a mentally incapacitated person stipulated in
Q the Criminal Procedure Ordinance. Q
On the other hand, she has achieved good community
R R
adjustment and practical living skills which needs
infrequent or no support in her daily life. And she has the
S capability of independent living. As such, her condition is S
considered to be inconsistent with the definition of a
mentally incapacitated person under the Crimes Ordinance.
T T
This court has also the information of a victim impact
U
report which was prepared after the incident. According to U
the clinical psychologist Ms Kwok Chung-sze of the Social
CRT18/2.10.2024/AB 3 HCCC 138/2024(1)/Sentence
V V
A A
Welfare Department, after the incident, X avoided visiting
the Wellness Centre where she encountered the defendant.
B Following the incident, she had feelings of shame and even B
chose to change her name. She had unresolved anger and fear
towards the defendant which was manifested in her becoming
C increasingly withdrawn and engaged in self-mutilation on C
her arms and thighs. Her condition was so serious that her
D
mother reported an incident in which X cut her arm deeply, D
necessitating hospitalisation for treatment and resulting
in significant wounds and scarring. She also became hyper-
E vigilant around male strangers and she actively avoided E
contact with men.
F The assessment of X revealed significant and multifaceted F
psychological impacts stemming from her experience of the
G sexual assault. X exhibited a range of post-traumatic G
stress disorder (PTSD) symptoms and avoidance behaviour
which indicated a profound disruption in her emotional and
H psychological well-being. Her depressive symptoms reflected H
an inadequate coping response to the trauma, further
entrenching her in a cycle of emotional distress. The
I assault also led to significant sexual distortions and I
distress, impairing her ability to form healthy intimate
J relationships. According to the clinical psychologist, she J
has a continuous need to receive clinical psychological
treatment.
K K
The defendant is now 30 years of age. He has completed Form
4 education and he has no previous criminal conviction. He
L L
was single and lived with his mother. He used to work as a
part-time cleaning worker earning about $1,500 per month.
M M
In her mitigation, defence counsel Ms Sabrina See stated
that the defendant alleged that he was suffering from
N mania, hyperactivity disorder and emotional illness since N
he was 17, but he did not receive any treatment for those
matters. He has been attending the Princess Margaret
O O
Hospital since 2012 for schizophrenia.
P Counsel urged this court to take into account the fact that P
he admitted the offence and he was cooperative with the
police by admitting the offence upon his arrest. He was
Q also remorseful and truly regreted upon learning the Q
suffering of X and the impact on her thereafter. Counsel
urged this court to take into account the fact that he
R R
pleaded guilty to the offence even though X failed to
identify him in the subsequent identification parade held
S in February 2023. S
Counsel said there was no evidence that he had taken
T advantage of the mental health state of X, and that the T
reports indicated X did not require any support in her
U
daily living. For example, she was able to go to the home U
of the defendant by herself on the day of the offence.
CRT18/2.10.2024/AB 4 HCCC 138/2024(1)/Sentence
V V
A A
Also, counsel acknowledged that it was an aggravating
feature because no condom was used during the sexual
B intercourse. However, the defendant did not ejaculate in B
her vagina which removed the risk of getting her pregnant.
C For the offence of rape, the usual sentence is no less than C
five years without aggravating feature. In this particular
D
case, I consider that the incident was aggravated by three D
particular matters.
E First of all, no condom was used during the sexual E
intercourse. Even though he did not ejaculate inside the
vagina of X, however, it is indicated in the Admitted Facts
F that he forced X to watch the porn video together with him F
because he could not ejaculate. So he did not ejaculate.
G The fact that he did not ejaculate was not a deliberate G
decision on his part but rather that he was unable to
ejaculate at the material time.
H H
Secondly, the fact that X was a mentally incapacitated
person as defined under the Criminal Procedure Ordinance
I and the Mental Health Ordinance. However, I agree with I
counsel that on the facts of the case, there is nothing to
J indicate that he was aware of her condition. But the fact J
that they had been acquainted and going out to meet each
other for a period of time indicated that there must be at
K least some indication about the mental capacity of X. K
Thirdly, I consider the case is aggravated by the very
L L
serious trauma suffered by X and that impact upon her and
she needs continuous treatment psychologically.
M M
Having taken into account all those aggravating features, I
consider the appropriate starting point should be one of 8
N years’ imprisonment, that is, 96 months. The defendant N
pleaded guilty at an early stage and he is entitled to the
full one-third discount. Other than that, I do not see any
O O
other mitigating circumstances.
P As such, after the discount, he is sentenced to a total of 5 P
years and 4 months’ imprisonment accordingly, and that is
the sentence that I impose.
Q Q
R R
S S
T T
U U
CRT18/2.10.2024/AB 5 HCCC 138/2024(1)/Sentence
V V
A A
HCCC 138/2024
[2024] HKCFI 3566
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C COURT OF FIRST INSTANCE C
CRIMINAL CASE NO 138 OF 2024
D D
-----------------
E HKSAR E
v
F F
Kong Wa-kan (江華根)
G G
-----------------
H Before: Hon Anna Lai J H
Date: 2 October 2024 at 9.37 am
Present: Mr Tang Ming-chung Kelvin, SPP of the Department of
I I
Justice, for HKSAR
Ms See Heung-woon Sabrina, instructed by Ernest Tang,
J Solicitors, assigned by DLA, for the accused J
Offence: Rape (強姦)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M M
COURT: The defendant pleaded guilty to one count of rape before
a magistrate on 25 April this year. According to the
N N
particulars of offence, he raped a female, “X”, at his home
in Fu Kwai House in Tai Wo Hau Estate, Kwai Chung, on 3
O November 2022. O
According to the Summary of Facts to which he agreed at the
P time of his plea, at the material time he was 28 years old P
and X was 23 years old. X was suffering from depression
since 2018, and she had to attend follow-up sessions at the
Q Q
Princess Margaret Hospital every three months and to take
regular medication to stabilise her emotions. The defendant
R suffered from schizophrenia since 2012. Also he was R
required to attend follow-up sessions at the Princess
Margaret Hospital. The facts stated that he has received
S disability allowance for over 10 years. S
The two of them came to know each other in year 2020 during
T T
an activity held in the Wellness Centre, which was an
integrated community centre for mental wellness. Since then
U they occasionally met with each other about once or twice U
per week.
CRT18/2.10.2024/AB 1 HCCC 138/2024(1)/Sentence
V V
A A
On 3 November 2022, the defendant asked X to go to his flat
B for a chat and she agreed. At about 7.30 pm on that day, B
they met and the defendant brought her up to his flat.
After chatting for a while in the flat, the defendant
C indicated that he wanted to have sex with X and asked her C
to remove her lower garments. X reluctantly acceded as she
D
was afraid. After having the lower garments of both of them D
removed, X pushed the defendant’s shoulder once to express
her reluctance, but the defendant did not pay heed to her.
E He then asked X to sit on his penis and penetrated into her E
vagina without a condom. At the same time, he also touched
and squeezed the breasts of X.
F F
After a while, he said that he could not ejaculate and he
G had to watch porn video while having sex. Then he took out G
his phone and watched the porn video while he continued the
sexual intercourse. After a while, they changed to another
H posture. At this stage, X pushed the defendant’s upper body H
again to show that she did not want to have sex with him.
But he ignored her and continued to penetrate her vagina
I without a condom. At the same time, he moved his body back I
and forth whilst holding his phone with one hand to watch
J the porn video. It was until X said that she felt tired J
that he stopped. He appeared unhappy and stated that he had
to take medicine. Then both of them left the flat
K eventually. K
According to the CCTV footage of Fu Kwai House, the two of
L L
them entered Fu Kwai House together at about 7.44 pm on 3
November 2022. And they left together at about 8.21 pm on
M the same night. That is about 37 minutes later. M
X only intended to have a chat at his flat and she did not
N want to have sex with him. N
Thereafter, at about 9.00 pm on the same day, X made a
O O
complaint to her boyfriend, Y. Then the next morning, on 4
November, her mother also came to know about the matter.
P Eventually a report was made to the police. P
The defendant was arrested by the police for the offence of
Q rape on 4 November 2022. He stated under caution that, Q
“Sorry, I did rape her, give me a chance.” He also said
that he had sexual intercourse with X at his home. After
R R
the sexual intercourse, he watched porn video with his
iPhone together with her.
S S
In a subsequent video-recorded interview, he said he made
love with X at his home. He was the one who initiated to
T have sex with X because he was addicted in watching porn T
contents. He came to know X at the Centre and they had
U
known each other for about two years. On the evening of 3 U
November 2022, he asked X to go to his home. Upon arrival,
CRT18/2.10.2024/AB 2 HCCC 138/2024(1)/Sentence
V V
A A
he first pulled up the upper garment of X against her wish
to molest and squeeze her breasts. Then he removed her jean
B shorts and underpants and also removed his own lower B
garments before he had sex with X. At the material time, he
said X did struggle and said, “No.” He knew that she was
C not willing to have sexual intercourse with him. But he C
continued in spite of her struggling as he could not
D
control himself. Also, he initiated to change the posture D
because he wanted to have more excitement. He said X helped
him to masturbate on his request. During the sexual
E intercourse, he did not use a condom and also he did not E
ejaculate. The whole sexual intercourse lasted for about 15
to 30 minutes. He knew that X was not willing to have sex
F with him. Also he initiated to watch the porn video during F
the sexual intercourse because he wanted more excitement,
G but X did not show much interest. G
Upon an assessment of the intellectual and adaptive
H functioning of X, it was the opinion of the clinical H
psychologist Ms Lui Fung-yee that the adaptive functioning
ability of X was equivalent to a person of 12 years and two
I months old, which was lower than 99 percent of adults at I
her age. She was considered to have fulfilled the criteria
J of Mild Intellectual Disability. However, she had achieved J
good community adjustment and practical living skills which
required infrequent or no support in her daily life.
K K
By his plea of guilty, the defendant now accepts and admits
that at the material time he raped X at his flat.
L L
Information has put before this court about the assessment
M of the intellectual and adaptive functioning of X. The date M
of assessment was in August 2023. Her intelligence level
was estimated to be equivalent to a person of 12 years and
N two months old. And her assessment indicated significant N
abnormal functioning. She was therefore estimated to be
cognitively impaired. However, she possessed the capability
O O
to live independently. According to the clinical
psychologist, her functioning falls within the definition
P of a mentally incapacitated person under the Mental Health P
Ordinance. As such, her functioning also fits the
definition of a mentally incapacitated person stipulated in
Q the Criminal Procedure Ordinance. Q
On the other hand, she has achieved good community
R R
adjustment and practical living skills which needs
infrequent or no support in her daily life. And she has the
S capability of independent living. As such, her condition is S
considered to be inconsistent with the definition of a
mentally incapacitated person under the Crimes Ordinance.
T T
This court has also the information of a victim impact
U
report which was prepared after the incident. According to U
the clinical psychologist Ms Kwok Chung-sze of the Social
CRT18/2.10.2024/AB 3 HCCC 138/2024(1)/Sentence
V V
A A
Welfare Department, after the incident, X avoided visiting
the Wellness Centre where she encountered the defendant.
B Following the incident, she had feelings of shame and even B
chose to change her name. She had unresolved anger and fear
towards the defendant which was manifested in her becoming
C increasingly withdrawn and engaged in self-mutilation on C
her arms and thighs. Her condition was so serious that her
D
mother reported an incident in which X cut her arm deeply, D
necessitating hospitalisation for treatment and resulting
in significant wounds and scarring. She also became hyper-
E vigilant around male strangers and she actively avoided E
contact with men.
F The assessment of X revealed significant and multifaceted F
psychological impacts stemming from her experience of the
G sexual assault. X exhibited a range of post-traumatic G
stress disorder (PTSD) symptoms and avoidance behaviour
which indicated a profound disruption in her emotional and
H psychological well-being. Her depressive symptoms reflected H
an inadequate coping response to the trauma, further
entrenching her in a cycle of emotional distress. The
I assault also led to significant sexual distortions and I
distress, impairing her ability to form healthy intimate
J relationships. According to the clinical psychologist, she J
has a continuous need to receive clinical psychological
treatment.
K K
The defendant is now 30 years of age. He has completed Form
4 education and he has no previous criminal conviction. He
L L
was single and lived with his mother. He used to work as a
part-time cleaning worker earning about $1,500 per month.
M M
In her mitigation, defence counsel Ms Sabrina See stated
that the defendant alleged that he was suffering from
N mania, hyperactivity disorder and emotional illness since N
he was 17, but he did not receive any treatment for those
matters. He has been attending the Princess Margaret
O O
Hospital since 2012 for schizophrenia.
P Counsel urged this court to take into account the fact that P
he admitted the offence and he was cooperative with the
police by admitting the offence upon his arrest. He was
Q also remorseful and truly regreted upon learning the Q
suffering of X and the impact on her thereafter. Counsel
urged this court to take into account the fact that he
R R
pleaded guilty to the offence even though X failed to
identify him in the subsequent identification parade held
S in February 2023. S
Counsel said there was no evidence that he had taken
T advantage of the mental health state of X, and that the T
reports indicated X did not require any support in her
U
daily living. For example, she was able to go to the home U
of the defendant by herself on the day of the offence.
CRT18/2.10.2024/AB 4 HCCC 138/2024(1)/Sentence
V V
A A
Also, counsel acknowledged that it was an aggravating
feature because no condom was used during the sexual
B intercourse. However, the defendant did not ejaculate in B
her vagina which removed the risk of getting her pregnant.
C For the offence of rape, the usual sentence is no less than C
five years without aggravating feature. In this particular
D
case, I consider that the incident was aggravated by three D
particular matters.
E First of all, no condom was used during the sexual E
intercourse. Even though he did not ejaculate inside the
vagina of X, however, it is indicated in the Admitted Facts
F that he forced X to watch the porn video together with him F
because he could not ejaculate. So he did not ejaculate.
G The fact that he did not ejaculate was not a deliberate G
decision on his part but rather that he was unable to
ejaculate at the material time.
H H
Secondly, the fact that X was a mentally incapacitated
person as defined under the Criminal Procedure Ordinance
I and the Mental Health Ordinance. However, I agree with I
counsel that on the facts of the case, there is nothing to
J indicate that he was aware of her condition. But the fact J
that they had been acquainted and going out to meet each
other for a period of time indicated that there must be at
K least some indication about the mental capacity of X. K
Thirdly, I consider the case is aggravated by the very
L L
serious trauma suffered by X and that impact upon her and
she needs continuous treatment psychologically.
M M
Having taken into account all those aggravating features, I
consider the appropriate starting point should be one of 8
N years’ imprisonment, that is, 96 months. The defendant N
pleaded guilty at an early stage and he is entitled to the
full one-third discount. Other than that, I do not see any
O O
other mitigating circumstances.
P As such, after the discount, he is sentenced to a total of 5 P
years and 4 months’ imprisonment accordingly, and that is
the sentence that I impose.
Q Q
R R
S S
T T
U U
CRT18/2.10.2024/AB 5 HCCC 138/2024(1)/Sentence
V V